This Bill is designed primarily to deal with the fugitive criminal who is able to avoid being extradited by successfully claiming the political exemption which the extradition process allows. It has its genesis in the Sunningdale Conference of late 1973 when all parties there representing all shades of responsible constitutional political opinion in this island agreed on the dire necessity for an answer to the problem. I am glad that that consensus on the need to solve the problem of the fugitive offender is reflected by all parties in this Parliament though we may differ on the means proposed.
That consensus is shared here because I feel that there is well nigh universal embarrassment in this country at the predicament in which our judges find themselves, being constrained as they are in these extradition applications to release persons accused of the most serious crimes. This widespread embarrassment is compounded by the knowledge that the release of these fugitives is a matter of grave scandal in Northern Ireland where our fellow-Irishmen have suffered so much in their persons and properties at the hands of these people. In addition there is widespread unease here that people of such a character should seek to join our community. There is, I think, an unspoken feeling or a latent mood in this country that wants all the sanctions of the law imposed on these people. There is a growing intolerance of and impatience with their philosophies and activities. There is a great yearning for peace and one way we here in Parliament can respond to that yearning and encourage it is to use this debate to demonstrate our unequivocal abhorrence of violence and to articulate our desire to see an end to it.
As I say, we may differ in our attitudes to the means proposed by this Bill to solve the problem of the fugitive criminal, but I hope all who speak in the debate will be careful, if they do not approve of the mechanics proposed by the Bill, nevertheless to give their full approval to what it seeks to do—that is, to bring to justice some at least of those who have inflicted so much horror on our Northern countrymen over the past years. By doing so we can show to all the people of Northern Ireland that we are one with them in our detestation of terrorism.
I have said that this Bill had its beginnings at Sunningdale. While the problem was recognised there, it was agreed that its solution was a complex matter and a commission of eminent judges and jurists was set up to devise a solution that would take account of all the complexities but hopefully would be effective in its accomplishments. The possible solutions to the problem which had been thrown up by the conference and which were to be examined by this commission were: the amendment of the existing extradition legislation so as to remove the political exemption; the creation of a common law enforcement area in which an all-Ireland court would have jurisdiction; and the extension of the jurisdiction of domestic courts so that they could try offences committed outside their jurisdictions.
The Law Enforcement Commission agreed that the all-Ireland court method did not offer a practical immediate solution to the problems. The contrary may be argued in this debate and, if so, I look forward to hearing an assessment of the feasibility of this solution in the contemporary political context. The commission were evenly divided on the extradition method and consequently made no agreed recommendations on that method. However they agreed that there were no legal objections to the validity of the exercise of extra-territorial jurisdiction by domestic courts supplemented by a procedure for taking evidence outside the State or Northern Ireland, as the case might be. This procedure for taking evidence is one of the matters which has given rise to criticism of this Bill on the part of the Opposition and I will be dealing with this in more detail later in my speech.
The constitutionality of the Bill has been impugned by the Opposition spokesmen. I look forward during the debate to hearing the reasons, which will necessarily be technical and legal, for the Opposition's view in this regard. Our advice is strongly that the Bill is constitutional for, of course, if it were otherwise, the measure would not have been introduced.
The Government, naturally, are anxious that the Bill, like any other piece of legislation passed by the Oireachtas, would stand up constitutionally. Because of the objectives of the Bill it is important that its constitutionality be tested, if tested it is to be, as soon as possible, and the Government would see much merit in a reference to the Supreme Court prior to enactment, provided substantial arguments to justify the claim of unconstitutionality are adduced during this debate. However, the reference of a Bill to the Supreme Court is a matter for the President, after consultation with the Council of State. I would like at this stage to deal with the concept of extra-territoriality. There is nothing novel or extraordinary in this concept. It has already been adopted in our legal system. It is not prohibited in international law and has been a feature for a considerable time of the legal systems of the civil law countries.
In our legislation there are plenty of precedents for the assumption of extra-territorial criminal jurisdiction. We have the Foyle Fisheries Act, 1952; the Offences against the Person Act, 1861; section 38 of the Extradition Act, 1965; the Air Navigation and Transport Act, 1973; and the Geneva Conventions Act, 1962.
In spite of these precedents and its long-standing acceptance in civil law and in international law it remains a little known concept here, even among lawyers, and I propose therefore to deal with it in some detail.
The claim in international law to jurisdiction over acts committed abroad either by one's own nationals or by persons, irrespective of nationality, is quite different from a claim to exercise jurisdiction over areas and territories other than one's own. Indeed, if this were not so, the well-established notion of the international crime or of the criminality of acts committed outside the jurisdiction would have no place in international law. It is important to note that, though our Constitution in Article 2 specifies the national territory as the whole island, Article 3, while preserving the right to exercise jurisdiction over the whole of that territory, then says that the laws enacted by our Parliament shall have the like area and extent of application as the laws of Saorstát Éireann and the like extra-territorial effect. The language used in these two Articles is of fundamental importance in the context of what the Bill seeks to do. There is nowhere in these Articles, read together, any restriction on the creation of extra-territorial jurisdiction over the activities of Irish or non-Irish nationals abroad. Indeed, it would be strange if there were.
Piracy on the high seas has, for example, long been considered an international offence that may be tried in the courts of any jurisdiction. The same is now true in respect of air piracy in all those countries that have ratified, as we have, the 1970 Convention of the Hague for the Suppression of the Unlawful Seizure of Aircraft—set out in the Second Schedule to the Air Navigation and Transport Act, 1973. Although it was not necessary for the purposes of the convention, section 11 of this Act —which creates the offence of unlawful seizure of aircraft—apples to an act committed on any aircraft where the act is that of an Irish citizen or of a person habitually resident in the State or the aircraft is an Irish-controlled aircraft. The convention itself applies only if the place of take-off or the place of actual landing is situated outside the territory of the State of registration, and it is immaterial whether the aircraft is engaged on an international or a domestic flight. Accordingly, the convention does not cover the hijacking of an aircraft flying on a flight between London and Edinburgh which actually lands in Belfast. However, section 11 of the 1973 Act does apply if, for instance, the actual hijacking is committed by an Irish citizen or a person habitually resident here.
I mention section 11 of the Air Navigation and Transport Act, 1973, because it is a modern Act enacted by this very Parliament and also because an offence under that section is one of the offences specified in the Schedule to the present Bill. Another example of an extra-territorial offence is murder committed abroad by an Irish citizen. This is because of section 9 of the Offences Against Person Act, 1861, as recently adapted. This provision will, by the way, be additional to the provision in the Bill making murder committed in Belfast an offence under our law, irrespective of the nationality of the offender. A further example of extra-territorial jurisdiction is to be found in section 3 of the Explosive Substances Act, 1883, which deals with preparatory acts and conspiracies to cause explosions and possession of explosives with intent. It is proposed in section 4 of the Bill to re-enact this section in modern form and in addition to extend the ambit of the substantive offence—under section 2 of the 1883 Act—of causing an explosion so as to cover explosions caused abroad by Irish citizens. I shall deal with section 4 of the Bill in more detail later on.
I have already mentioned that the taking of extra-territorial jurisdiction is not without precedent in countries other than common law countries— for example, France, Germany, Norway and Austria. Let us look at the law in France and Germany, two of our partners in the Common Market.
The extra-territorial application of French criminal law is provided for in the Code of Criminal Procedure, Book IV, Chapter X, articles 689 to 696. A French citizen who commits when abroad serious offences may be tried and dealt with by the French courts. Serious offences are classified by French law not by their nature but by the punishment they attract. Broadly speaking any offence committed abroad by a French citizen which is punishable by imprisonment for not more than five years can be prosecuted in France, provided the offence is punishable by the law of the place of commission. In the case of more serious offences, this restriction does not apply. Moreover, a foreigner who, when abroad, commits or is an accomplice to an offence against the security of the French state or involving counterfeiting the state seal or national currency may be tried and dealt with according to French law if he is arrested in France or the Government obtains his extradition.
Under the criminal code of the Federal Republic of Germany, German criminal law applies to an act committed by a German national irrespective of whether he commits it in Germany or abroad. However, German criminal law does not, with a limited exception, apply to an act committed abroad which is not punishable according to the law of the place of commission. German criminal law also applies to an offence committed by a foreigner abroad if it is punishable according to the law of the place of commission and if the offence is directed against the German people or against a German national or the offender is found in Germany and is not extradited. Irrespective of the law of the place of commission, German criminal law applies to certain serious offences committed by a foreigner abroad, such as treason, offences concerning explosives, traffic in children or women, unauthorised distribution of narcotics and offences committed against the holder of a German public office or a German soldier during the performance of their duties or in relation to their duties. Finally, irrespective of the place of commission, German criminal law applies to acts committed on board German ships or aircraft. The rules as to the application of German criminal law are to be found in articles 3, 4 and 5 of the criminal code.
The taking of extra-territorial jurisdiction can be justified in international law upon several generally recognised principles, such as the protective principle, the passive personality principle, the nationality principle and the universality principle. As from various comments on the proposals in the Bill it appears to me that sufficient attention has not been paid to these principles, I feel I ought to elaborate somewhat on them.
At one time it used to be argued by what I may describe as Anglo-American jurists that the state within which a crime was committed was the only one that could assume jurisdiction to try it. This was the territorial principle and was said to be the principle that distinguished the Anglo-American conception of jurisdiction from that which prevails in countries which follow the traditions of Roman Law. However in time the strongest supporters of territoriality, England and the United States, had to abandon the principle or at least to modify it considerably.
It is at the very basis of the sovereignty of a state that it must be able to guard itself and punish activities for breaches of its criminal law no matter where committed that can affect its own security. This is the security principle, to which is allied the protective principle, which allows a state to punish any person for infractions of its criminal law when the effects of these infractions will be or are calculated to be felt within the state, no matter where or by whom committed. To quote from a celebrated United States case, which declared that the protective principle is recognised in international law: "The concept of essential sovereignty of a free nation clearly requires the existence and recognition of an inherent power in the State to protect itself from destruction".
It is now no longer doubted that a state may in exercising its sovereignty punish its nationals for breaches abroad of its criminal law to such extent and in such manner as it may deem proper. This is the nationality or active personality principle and is also derived from the concept of sovereignty. Moreover, it is generally recognised that the protection of his own state which a citizen carries with him abroad imposes on him a duty to refrain from activity contrary to the criminal law of that state. Generally, of course, the act, except where it involves the security of his own state, must be contrary to the criminal law of the place where it is committed.
A national abroad may, therefore, be subject to two jurisdictions and two different criminal laws. Thus the nationality principle on which extra-territorial criminal jurisdiction may be founded is not the same as the rule in international private law under which a person for certain purposes carries his national or personal law with him wherever he goes. Where a person's capacity to marry or to make a will abroad, for example, is governed by his own personal or national law, or where a person's national law governs his matrimonial property regime, or where he submits his succession to his own national law, he or his property is subject to one law only, whereas, under the nationality principle in the case of criminal jurisdiction, he is subject to two laws, both the lex patriae and the lex loci delicti.
In addition to the active personality principle in international law, there is also the passive personality principle, which is also akin to the nationality principle and may, indeed be said to derive from it. As a state in exercise of its sovereignty may protect its citizens abroad, some states will prosecute any person for infractions of the criminal law committed against one of their nationals.
Finally, there is the universality principle which allows for the punishment of certain grave offences that offend the conscience of mankind. These are such offences as murder, the use of explosives, trading in drugs, trafficking in women and children, piracy jur gentium, hijacking of aircraft, breaches of the 1949 Geneva Conventions on the protection of sick and wounded combatants, prisoners of war and civilian enemy aliens in time of war and so where international policy clearly justifies universal suppression.
I have shown that the territorial concept under which a state may punish criminal activity only where it takes place within its own territory is not regarded in international law as anything like an all-embracing one. As was stated in the case of The Lotus, which came before the Permanent Court of International Justice (Series A. No. 10 (1927):
The territoriality of criminal law ... is not an absolute principle of international law and by no means coincides with territorial sovereignty.
Territoriality has certainly not been accepted as an absolute in our criminal law as is demonstrated in the enactments of the Oireachtas such as the Foyle Fisheries Act, 1952; section 38 of the Extradition Act 1965, which implements the requirement in the European Extradition Convention for the prosecution of offences committed abroad by nationals of the requested state not liable to extradition, the Geneva Conventions Act 1962 and section 11 of the Air Navigation and Transport Act 1973, all of which are referred to in the footnote to paragraphs 20 of the Law Enforcement Commission Report. Except for the 1973 Act, every one of these statutes was enacted when the present Opposition were in office. As far as concerns the 1973 Act, the detailed proposals for the Bill of that Act were approved by the previous Government, and no objection was made to its provisions on constitutional grounds either when the Bill or the Act was before the Dáil or when it was before this House.
Article 29 of the Constitution provides in section 3 that Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other states. The Law Enforcement Commission in paragraph 20 of their report state in reference to the taking of extra-territorial jurisdiction that:
The jurisdiction can be justified in international law on several generally recognised principles.
If Articles 2 and 3 of the Constitution prevent us from assuming jurisdiction over acts committed outside the State, it is difficult to see how we could have ratified a number of international conventions that we have ratified—and implemented in our municipal law— such as the Geneva Red Cross Conventions of 1949, the European Convention on Extradition of 1957 and the Hague Convention on Unlawful Seizure of Aircraft of 1970.
Before leaving the question of extra-territorial jurisdiction and international law I would ask those who oppose the Bill to bear in mind that we are dealing with crimes committed in Ireland and against Irish people. It is not as if the Bill provided that our courts should have jurisdiction over crimes committed in a country a thousand miles away. Even if the rules of international law, strictly construed, would prevent us—which they do not—from instituting a system of mutual law enforcement similar to that in the Bill between the State and a country in a distant part of the world, it is surely unreal to argue that those rules should apply in exactly the same way as between the State and Northern Ireland. To treat Northern Ireland as part of a foreign state for present purposes seems to me not only artificial but inconsistent with the history of co-operation between the two parts of Ireland which has been practised down through the years in so many respects, and inconsistent too with our tradition of regarding Ireland, in spite of the Border, as one country and one people.
The Criminal Law (Jurisdiction) Bill that we have now before us is primarily designed to introduce extra-territoriality in the field of criminal law as between ourselves and Northern Ireland. The Bill proposes (1) to extend our criminal law and criminal jurisdiction so that they will cover a number of very serious offences committed in Northern Ireland by any person, irrespective of his nationality, and (2) to make the new jurisdiction operate effectively by supplementing the extra-territorial method with a satisfactory procedure that will contain adequate protection for accused persons. In addition to this, we are availing ourselves of this opportunity to propose several reforms in the ordinary substantive criminal law concerning explosives, firearms, robbery, burglary and hijacking of vehicles. These are reforms that I, as Minister for Justice, would in any event have been recommending fairly soon as desirable law reforms in their own right, and I hope that they will be discussed on that basis.
I will summarise now the principal provisions of the Bill and in doing so I will deal with certain legal objections that have been raised to some of these provisions in addition to the main objection based on Articles 2 and 3 of the Constitution, which I have already discussed.
Many of the provisions in the Bill are admittedly complicated, but this is inevitable having regard to the subject matter and to the structure of the criminal law generally. For this reason the explanatory memorandum goes into a fair amount of detail, and I think it would be advisable to have the memorandum at hand to refer to, if necessary, when considering some of the more complicated provisions of the Bill. At this stage I do not propose to go into great detail on each of the provisions, as there will, I hope, be ample opportunity to examine the Bill section by section later on.
Section 2 is the principal provision of the Bill. Its purpose is to secure that any act done in Northern Ireland that, if done in the State, would be one of the offences specified in the Schedule to the Bill will be an offence under the law of the State. The offender will be punishable as if he had done the act in the State. In other words, the offences will be made extra-territorial offences. This purpose is secured by subsection (1). The other subsections deal with participation in an offence such as aiding and abetting, being accessory before the fact and so on. If those provisions seem complicated, the reason is that the Bill has to take account of the case of being an accomplice in the State in respect of an offence committed in the North, that of being an accomplice in the North in respect of an offence committed in the North and that of being an accomplice in the North in respect of an offence committed in the State. It is also necessary to provide for the inchoate offences of attempting, conspiring and inciting.
Another reason for the complications of the section is that the Bill does not propose to make any of the offences, if committed in Northern Ireland, felonies, even though some of the offences would be felonies if committed in the State. The division of offences into felonies and misdemeanours is an archaic distinction, which, I trust, will before long be abolished by other legislation. For the present, the fact that an offence is classified as a felony has some important consequences. One of these is that a person who assists a person guilty of felony to evade apprehension or prosecution is guilty of being accessory after the fact to the felony. Subsections (4) to (8) of section 2 provide for the punishment of a person who gives this kind of assistance to a person guilty of an extra-territorial offence. The provisions of the subsections I have mentioned take account of the fact that the principal offence or the giving of the assistance, or both, may have taken place either in the State or in Northern Ireland.
Section 3 makes it an offence for a person charged with or convicted of an offence under the law of Northern Ireland consisting of conduct of the kinds to which section 2 applies, whether committed in the State or in Northern Ireland, to escape from custody in Northern Ireland. The section also makes it an offence for a person to escape from custody in Northern Ireland when he has been taken there in order to be present at the taking of evidence on commission for the purpose of his trial in the State under the procedure provided for by section 11, to which I shall refer later.
The maximum penalties for the offences of escaping will be seven years' imprisonment. The section in effect reinforces the provisions of secvicted of an extra-territorial offence, of escaping from custody in the North is confined to escapes from custody where the offender is in custody as a result of being charged with or convcted of an extra-terrtorial offence, whether committed in the North or here, or an offence ancillary to an extra-territorial offence. The section does not apply to escape from internment and the Bill has nothing whatever to do with such an escape.
Sections 4 to 10 of the Bill propose amendments to the substantive criminal law relating to certain acts involving violence or the possibility of violence, and they are particularly relevant to the situation in Ireland. All the offences in question except ordinary burglary under section 6 of the Bill are included in the Schedule to the Bill.
Section 4 is essentially a modernisation and extension of the offence under section 2 of the Explosive Substances Act, 1883 of causing an explosion and of the offence under section 3 of that Act consisting, to state it shortly, of planning to cause an explosion. So far as Irish law is concerned the offence under section 2 of causing an explosion applies, as with offences generally, to any person, whether an Irish citizen or not, who causes an explosion in the State. The position as to the preparatory offence under section 3 is more complicated. That section, in its present form, is inappropriate for the State, because it is expressed to apply to things done by any person in the British dominions, and to things done by British subjects elsewhere, for the purpose of causing an explosion in the United Kingdom. Section 4 of the Bill proposes to replace sections 2 and 3 of the 1883 Act with two new sections. The new section 2 will still apply to any person, whether an Irish citizen or not, who causes an explosion in the State, but it will also apply to any Irish citizen who causes an explosion outside the State. The new section 3 will apply to the same kinds of preparatory acts as at present but to such acts done by any person in the State, or by an Irish citizen outside the State, for the purpose of causing an explosion anywhere. In other words, the Bill adapts section 3 of the 1883 Act by substituting Irish citizens for British subjects and substituting the State for the British dominions, but it does not follow section 3 of the 1883 Act in limiting the offence to where the explosion is planned to take place in any particular area. That is to say, it does not substitute a reference to the State for the reference to the United Kingdom. It seems to the Government that, having regard to the seriousness of any offence involving the use of explosives and in particular to the proposed requirements as to the nationality of the offender, it is right that the offences under the two sections of the 1883 Act should apply wherever the explosion takes place, or is to take place, as the case may be.
Section 5 replaces the offences of robbery and aggravated robbery with a new and simpler offence of robbery. The change from the existing law is not great, but there will be the advantage that the definition of robbery will be found in the statute instead of depending on case law. In future there will be a single offence of robbery, punishable with imprisonment for life, instead of an offence of simple robbery punishable with 14 years' imprisonment and offences of aggravated robbery punishable with imprisonment for life. The present distinctions are an unnecessary complication. They also involve the anomaly that, whereas a person who commits robbery when accompanied by another person is liable for life imprisonment, a person who robs a victim by threatening to kill him on the spot is liable only to 14 years' imprisonment. There will also be the advantage that the new offence will be similar to the offence of robbery under the reformed theft law of Northern Ireland.
Sections 6 and 7 replace the present offence of burglary and the other offences involving breaking and entering buildings with a general offence of burglary, punishable with 14 years' imprisonment, and an offence of aggravated burglary, punishable with life imprisonment. The existing offences are extremely complicated. For instance, distinctions are drawn according to the kind of building entered, whether the entry is or is not by breaking, whether the offence takes place by day or by night and so on. The maximum penalties for the existing offences vary between imprisonment for seven years and imprisonment for life. Section 6 of the Bill creates a new offence of burglary. Stated shortly, this will consist of entering a building of any kind as a trespasser with the intention of stealing or committing any of certain other offences in it. The offence will also apply to stealing or committing any of these offences in the building after having entered it as a trespasser.
Section 7 creates an offence of aggravated burglary, consisting of burglary when having with one a firearm or imitation firearm, a weapon of offence or an explosive. I have mentioned that the maximum penalty for ordinary burglary will be 14 years' imprisonment and that for aggravated burglary will be life imprisonment. The effect in future will be that in some cases the offender will be punishable more severely than for similar conduct under the present law and in other cases less severely. Aggravated burglary is included in the Schedule to the Bill, but ordinary burglary is not.
Sections 8 and 9 are intended to strengthen the law as to possession of firearms by creating two new offences. Section 8 makes it an offence for a person to have a firearm or ammunition in his possession or under his control in such circumstances as to give rise to a reasonable inference that his purpose is not a lawful one; but a person will of course not be guilty if his purpose is in fact lawful. The maximum penalty will be five years' imprisonment. Section 9 makes it an offence for a person to have a firearm or imitation firearm with him with intent to commit an indictable offence or to resist or prevent the arrest of himself or another person. The maximum penalty will be ten years' imprisonment. The offences are included in the Schedule.
Section 10 creates a new offence of unlawful seizure of a vehicle by force or a threat of force or by any other form of intimidation. The offence will extend to otherwise interfering with the control of a vehicle or compelling or inducing some other person to use a vehicle for an unlawful purpose. The maximum penalty will be 15 years' imprisonment. One has only to remember the uses to which vehicles seized in these ways have been put in Ireland to see how necessary it is to strengthen the law by creating this offence and making it punishable with so high a maximum penalty. The offence is similar to that of unlawful seizure of aircraft under section 11 of the Air Navigation and Transport Act, 1973, but the maximum penalty for the latter offence is imprisonment for life. There is at present no corresponding offence under the law of Northern Ireland, but the corresponding Bill now before the British Parliament proposes to create an offence similar to that under section 10. The offence under section 10 is included in the Schedule to the Bill.
Sections 11 to 13 give effect to the scheme recommended by the Law Enforcement Commission that a court in one part of Ireland trying an extra-territorial offence committed in the other part should be able to secure the assistance of the High Court in the latter part to obtain evidence on commission there for the purpose of the trial. This will be an innovation, for the general rule is that all the evidence at a criminal trial must be given orally before the court, though, as pointed out in a recent Supreme Court decision, a statute may provide otherwise. I shall be referring to this decision later.
The proposition that the courts in each part of Ireland should be able to try offences committed in the other part raises the question of how the relevant facts can be proved when the witnesses to them are likely to be in the part where the offence was committed and a court sitting in the other part has no power to compel the witnesses to come to the part within its jurisdiction to give evidence. To meet this difficulty it is proposed that the court of trial should be able to issue a letter of request to the head of the judiciary in the other part of the country for the taking of the necessary evidence by a judge of the High Court in that part. The evidence will be taken in the presence of the member or members of the court of trial and the accused will have the right to be present and legally represented at the taking of the evidence and also the right to cross-examine the witnesses. If he decides to be present, he will be taken in custody to the jurisdiction where the evidence is to be taken and kept in custody there, but while in custody he will be immune from any proceedings in respect of any other matter, civil or criminal, in that jurisdiction. The procedure, so far as it depends on the law of the State, is set out in sections 11 to 13.
Section 11 applies to trials in the State and provides for he issue of the letter of request for the taking of evidence in Northern Ireland; section 12 provides for the taking of evidence in the State in response to a request by a court in Northern Ireland; section 13 is ancillary. I do not think I need describe all the provisions of the sections in detail. I shall mention certain points briefly and then deal with objections that have been raised against the procedure proposed.
First, in the case of a trial in the State, the procedure will be avaliable only to the Special Criminal Court and to a court hearing an appeal from that court. It will not be available for jury trials.
Secondly, at a trial in the State the court will be bound to issue the letter of request if either party so requests unless the court is satisfied that it is not in the interests of justice to do so. The court might refuse to do so, for example, if it considered that the request was made only in order to delay the proceedings. The court will have power to issue the letter of request of its own motion. An appellate court will have power to do so on request or of its own motion. This will be in accordance with the general rule that it is a matter for the discretion of an appellate court whether to receive evidence for the purpose of the appeal.
Thirdly, where a court in the State issues a letter of request, it will be required to inform the accused of his right to be taken to Northern Ireland in order to be present at the taking of the evidence and of his position if he exercises the right, including the necessity for him to be kept in custody in Northern Ireland, his rights at the taking of the evidence and his immunity from other proceedings in Northern Ireland. I want to emphasise that a defendant who exercises his right to be present at a commission is guaranteed immunity from any other proceedings and is guaranteed that, on the conclusion of the commission, he will be returned to the State. His rights at the taking of the evidence include, of course, the right to be represented by his lawyers from the State and their right to cross-examine and so on.
Fourthly, the judge who is to take the evidence on commission, referred to as the commissioner, will have all the necessary power to compel a person to attend as a witness and to produce documents as in the case of a witness at a trial, and a witness giving evidence on commission will enjoy all the privileges and immunities of a witness at a trial. These will include the privilege of refusing to answer an incriminating question and immunity from being sued in respect of anything said when giving evidence.
I should mention here that the provisions of the British Bill as to the taking of evidence on commission are similar in effect to those of the present Bill.
Objections have been raised to the procedure in sections 11, 12 and 13 of the Bill principally on the grounds that they prevent the accused person getting a fair trial. In answer to these objections let me stress that what takes place before the commissioner is not the trial or even part of the trial. The commissioner in the North is simply taking evidence for the trial and the admissibility, cogency and relevance of that evidence is a matter for the trial court. The accused person has the right to confront the witnesses who give evidence on commission and he will be perfectly entitled either to cross-examine them himself or have them cross-examined by his counsel. Indeed, in some cases the witnesses may be his own witnesses.
I referred already to a recent Supreme Court decision and I should now like to quote from the decision of the Court as delivered by the then Chief Justice Ó Dálaigh. The case I refer to is In the Matter of the Committee of Public Accounts of Dáil Éireann (Privilege and Procedure) Act 1970 and in the Matter of the Courts (Supplemental Provisions) Act 1961 and in the Matter of Pádraic Haughey. It is reported in [1971] Irish Reports at page 217 and the decision of the Supreme Court begins at page 256. The Supreme Court held that the enforcement of any rule of procedure which would deprive an accused person of his right to cross-examine, by counsel, his accusers and to address, by counsel, the tribunal in his defence would violate the rights guaranteed by Article 40, section 3, of the Constitution.
At page 261, 3rd paragraph, the Chief Justice says:
As to the disallowance of cross-examination, an accused person has a right to cross-examine every witness for the prosecution, subject, in respect of any question asked, to the Court's power of disallowance on the ground of irrelevancy. An accused, in advance of cross-examination, cannot be required to state what his purpose in cross-examination is.
At page 263, he states:
Having thus apparently accepted the necessity for such immunity [the immunity which the Act of 1970 gives to witnesses], counsel's submission was that, in all the circumstances, the minimum protection which the State should afford his client was (a) that he should be furnished with a copy of the evidence which reflected on his good name; (b) that he should be allowed to cross-examine, by counsel, his accuser or accusers; (c) that he should be allowed to give rebutting evidence; and (d) that he should be permitted to address, again by counsel, the Committee in his own defence. Protection (c) was allowed by the Committee and no real difficulty arose with regard to (a), so far as I can see; therefore (b) and (d) are the crux. The Committee's procedures ruled out the two latter protections.
The protections to which the Supreme Court decision refers, namely the right to cross-examine and the right to address the tribunal, by counsel, in one's own defence are in no way whatever adversely affected in the Bill now before us. At the top of page 264 of the report, the Chief Justice states in reference to these rights of cross-examination and giving rebutting evidence:
Without the two rights which the Committee's procedures have purported to exclude, no accused—and I speak within the context of the terms of the inquiry—could hope to make any adequate defence of his good name.
The Supreme Court held that the denial of the two rights in the procedures adopted by the Committee of Public Accounts, namely the right to cross-examine and the right to address the tribunal by counsel, violated the constitutional rights guaranteed by Article 40, section 3, of the Constitution, which, in the words of the Court "is a guarantee to the citizen of basic fairness of procedures".